Opinion
DOCKET NO. A-2521-13T2
02-19-2016
IN THE MATTER OF THE CIVIL COMMITMENT OF R.T. SVP-573-10.
Joseph E. Krakora, Public Defender, attorney for appellant R.T. (Michele C. Buckley, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-573-10. Joseph E. Krakora, Public Defender, attorney for appellant R.T. (Michele C. Buckley, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief). PER CURIAM
R.T. appeals from a January 15, 2014 judgment that committed him to the Special Treatment Unit (STU), a secure facility for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He contends that the court lacked jurisdiction to order his commitment, the State failed to sustain its burden of proof, he was denied a timely hearing, and he should have been assigned new counsel. Having considered these arguments in light of the record and applicable standards, we affirm.
I.
At the time of the commitment hearing on December 18, 2013, R.T. was fifty-eight years old. He has an extensive criminal record, dating back to when he was a juvenile. His prior court history shows at least seven sexually related arrests, including convictions in 1984, 1999, and 2005, in Philadelphia and San Francisco. Since age thirteen he has also been charged with multiple non-sexual offenses in Pennsylvania, California, and Nevada, including theft, burglary, fraud, assault, drug and weapons offenses, vehicular manslaughter, and failure to register.
At age sixteen, R.T. was charged in Philadelphia with rape and carrying a concealed weapon. He was placed in a juvenile diagnostic center and later on probation. R.T. stated to Dr. Schullery, a psychologist who evaluated him in 2009, that he had engaged in consensual sexual activity with a female peer, but denied that any force or violence was involved.
In December 1983, at age twenty-eight, R.T. was arrested in Alameda, California, and charged with assault to commit rape, battery with serious bodily injury, and possession of a controlled dangerous substance. The charges were dismissed. During his 2009 psychological examination, R.T. reported that the victim was a prostitute and that he accompanied her to a hotel where they used drugs together and engaged in consensual sex. He again denied the use of any force or violence.
In January 1984, R.T. was arrested in San Francisco and charged with committing lewd acts with a child under age fourteen, oral copulation, false imprisonment, and rape by force. Ultimately, the charges were downgraded to battery, and defendant received a ninety-day suspended sentence and was placed on probation for eighteen months.
Defendant was arrested again in San Francisco in July 1984. Following a jury trial, defendant was convicted of two counts of rape, oral copulation, assault with a deadly weapon, false imprisonment, and two counts of genital penetration by a foreign object. He was sentenced to a six-year term of imprisonment. According to the seventeen-year-old female victim, she was in defendant's apartment dropping off toys for another person. After having a drink together, R.T. would not allow her to leave. He grabbed her, hit her in the face multiple times, and forced her to submit to vaginal penetration twice. The victim also reported that she saw R.T. inhale a white powder that may have been cocaine. Defendant maintained that the sexual relationship was consensual and wrote a statement claiming that he was set up.
Defendant was incarcerated in California from 1984 until 1993. During that period he accrued ten disciplinary infractions. Following his release, R.T. incurred a series of parole violations and new charges. As a result, R.T. was intermittently incarcerated at various times between 1994 and 1998. Notably, after R.T. absconded in May 1997, he was arrested for car theft in New Jersey in August 1997. He was then returned to California where he remained in custody until he "maxed out" in February 1998.
In May 1999, R.T. was again charged in San Francisco with seven counts of annoying and molesting a child, stalking, and threatening. The charges were based on a number of sexually explicit letters R.T. sent from prison to two teenage girls. R.T. pled guilty to one count and received a three year custodial sentence.
Upon his release, R.T. continued to reoffend. He was arrested for drug sales in January 2000. The next month he was charged with failing to register as a sex offender. He again failed to register as a sex offender in Las Vegas in February 2002, and in March he was charged as a fugitive from justice.
R.T. resurfaced in Philadelphia where, on May 4, 2004, he was arrested and charged with rape, assault, unlawful restraint, reckless endangerment, false imprisonment, sexual assault, and indecent exposure. R.T. denied the charges, all of which were withdrawn. During his 2009 psychological examination, R.T. told Dr. Schullery that the woman was a prostitute and that they engaged in consensual sexual activity in a hotel room.
On March 7, 2005, R.T was again arrested in Philadelphia and charged with rape, aggravated assault, and various related offenses. He was convicted of aggravated assault and sexual assault, and sentenced to a twenty-three month prison term. He was also placed on probation for eight years, subject to Megan's Law.
After completing the custodial portion of his Pennsylvania sentence, R.T. was extradited to New Jersey on the outstanding 1997 charges that included theft, receiving stolen property, and eluding a police officer. R.T. pled guilty to third-degree theft, and on June 20, 2008, was sentenced to a four-year prison term.
On May 3, 2010, the State filed a petition for civil commitment pursuant to the SVPA, supported by clinical certificates of two psychiatrists identifying R.T. as a sexually violent predator. On May 10, the trial court entered an order temporarily committing R.T., and scheduled a date for the final hearing. On June 21, represented by counsel from the Office of the Public Advocate, R.T. moved to dismiss the State's petition for lack of jurisdiction. R.T. argued that he had never been charged with or convicted of any sexual offense in New Jersey, and that he should be returned to Pennsylvania, where he would be required to complete his probationary sentence, register as a sex offender, and participate in outpatient sex offender treatment.
Judge John McLaughlin denied the motion on October 8, 2010. R.T. moved for leave to appeal, which we denied on January 5, 2011. R.T. then sought leave to appeal to the Supreme Court, which denied the motion on April 7, 2011. The final hearing on the State's petition was adjourned while R.T. pursued these appeals and a post-conviction relief (PCR) application. On June 8, 2012, the court granted R.T.'s request to again adjourn the final hearing so that he could engage an expert. At a December 12, 2012 hearing, R.T. advised the court that he did not wish to proceed with the hearing because his PCR application was pending before the Appellate Division. He had also filed an ethics complaint against his public defender, and expressed his intention to retain private counsel.
The court held a final hearing on December 18, 2013. R.T. appeared, represented by newly assigned counsel. The State relied on expert reports and testimony from Dean DeCrisce, M.D., a psychiatrist, and Nicole Paolillo, Psy.D., a psychologist. R.T. testified but did not present an expert.
Dr. DeCrisce testified that he attempted to interview R.T. in July 2010, June 2012, and on December 16, 2013. He described R.T.'s interactions with him as cordial and appropriate and stated that R.T. displayed no evidence of gross psychiatric abnormalities. However, R.T. refused to be interviewed by Dr. DeCrisce. Consequently, Dr. DeCrisce reviewed available documents used by experts in the field to formulate his medical opinions and diagnosis.
Dr. DeCrisce diagnosed R.T. with antisocial personality disorder and polysubstance dependence. There also existed a possibility that R.T. suffered from paraphilia, but Dr. DeCrisce felt he had inadequate information to make that diagnosis within a reasonable degree of medical certainty. He opined that these conditions combined with R.T.'s manifestation of deviant sexual behavior make his risk of sexually reoffending high. He also scored R.T. as a seven on the Static-99R, placing him at high risk to reoffend.
According to Dr. Paolillo's report, the Static-99R is a test that provides "an actuarial measure of relative risk for sexual offense recidivism."
Dr. DeCrisce further concluded that R.T.'s history of repeated violations of his parole and supervision made it highly probable that he would be unable to comply with outpatient supervision. Rather, R.T. required substantial intensive treatment in a facility such as the STU. Dr. DeCrisce also testified that he did not believe R.T.'s colon cancer, which was in remission, would have any effect on his sexual functioning, as R.T. claimed.
R.T. also refused to be interviewed by Dr. Paolillo, who therefore based her testimony on the same background information used by Dr. DeCrisce. Dr. Paolillo diagnosed R.T. with paraphilia not otherwise specified, focusing on coercive sex (paraphilia non-consent), antisocial personality disorder, polysubstance dependence, and possible sexual sadism. She also scored R.T. as a seven on the Static-99R. Dr. Paolillo opined that R.T. lacks "any skills to function safely in the community and avoid committing another sexual offense." She concluded that it was "highly likely" that R.T. would reoffend if not committed to the STU.
R.T. testified at the final hearing. He disputed the accuracy of his reported criminal history. He also essentially denied the validity of the sexual offense convictions, describing them as "false charge[s]." R.T. also introduced documentation purporting to minimize or explain his involvement in those incidents.
Following the close of evidence, Judge Philip Freedman issued an oral decision committing R.T. to the STU. Finding the State's expert proofs credible, the judge determined that "clear and convincing evidence" demonstrated that R.T. suffers from a mental abnormality in the form of "personality disorder and substance abuse alone, or [] personality disorder, substance abuse, and a paraphilia." The judge found it unnecessary to find that R.T. suffers from a paraphilia in order to commit him, as R.T.'s conditions "clearly [] predispose[] [him] to engage[] in acts of sexual violence." Judge Freedman concluded that R.T.'s diagnoses affect him "emotionally, cognitively, and volitionally." The judge further found that if R.T. were released he would have difficulty controlling his sexually violent behavior.
Judge Freedman found R.T.'s testimony "totally incredible" and "the level of his grandiosity [] astonishing." The judge remarked that "it could have been videotaped or filmed . . . as a prime example of a psychopathic presentation." The judge also noted that R.T. had submitted a number of documents that appeared "bogus." The court entered a judgment on January 15, 2014, committing R.T. to the STU and scheduling a review hearing for December 2, 2014. This appeal follows.
We have not been advised whether this or subsequent review hearings have taken place. --------
II.
Under the SVPA, the State can involuntarily commit a sexually violent predator by civil proceeding. The State must show clear and convincing evidence that: (1) the defendant was convicted of a sexually violent offense; (2) the defendant suffers from a mental abnormality or personality disorder predisposing him or her to commit acts of sexual violence; and (3) the defendant has "serious difficulty in controlling his or her harmful behavior such that it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 120-30 (2002).
Review of a trial court's judgment in a civil commitment proceeding under the SVPA is "extremely narrow." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). We afford the utmost deference to the trial court's determination and make modifications only if there is a clear abuse of discretion. Ibid. "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the [trial court's] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996). Thus, the trial court's findings should not be disturbed if they are supported by sufficient credible evidence in the record. In re Civil Commitment of R.F., 217 N.J. 152, 175 (2014). "The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" Id. at 174 (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)).
Guided by these standards, we first reject R.T.'s arguments that the judgment is against the weight of the evidence presented and that he does not currently suffer from a mental abnormality or personality disorder predisposing him to sexual violence. R.T. failed to rebut the State's evidence that he was convicted of several sexual offenses in Pennsylvania and California. His offered explanations regarding the circumstances of the offenses for which he was convicted, and why he actually pled guilty to the Philadelphia charges in 2005, despite his claimed innocence, are incongruous and even absurd. Despite the overwhelming evidence to the contrary, in his mind, the denial of culpability justifies his treatment refusal. To be sure, the evidence shows he is in need of treatment to address his sexually violent behavior, which must precede consideration of his release.
We conclude from our review of the record that the judge's findings are supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). From the unrefuted testimony of the State's two experts, it is clear that R.T. suffers from mental abnormalities that pose a serious risk that he will sexually reoffend if released. There was no expert support for R.T.'s argument on appeal that the risk he will reoffend is minimized by his present age or his prior treatment for colon cancer. We affirm substantially for the reasons stated by Judge Freedman in his oral opinion of January 15, 2014. We find no error in the judge's conclusions, which were fully supported by the record and consistent with the applicable law.
R.T. also renews his argument that New Jersey lacks jurisdiction to civilly commit him because he is a Pennsylvania resident who has not committed a sex offense in New Jersey and poses no danger to New Jersey citizens upon his release. We conclude that this argument lacks merit.
The SVPA "applies whether the offense was committed in New Jersey . . . or another State." In re Commitment of P.Z.H., 377 N.J. Super. 458, 463-64 (App. Div. 2005). Moreover, in denying R.T.'s motion to dismiss, Judge McLaughlin determined that in light of R.T.'s mobility and contacts with New Jersey, his commitment would protect New Jersey residents from his potentially sexually violent behavior.
When arrested in 1997, R.T. told police that he was a resident of Pleasantville, New Jersey. Records produced at the hearing established that R.T. maintained a New Jersey driver's license from 1982 to 2001. While R.T. argues that he will reside in Philadelphia upon his release, in his January 15, 2014 decision, Judge Freedman noted that when interviewed by Dr. Schullery at South Woods State Prison R.T. instead stated that he planned to live with his sister in Egg Harbor Township. Accordingly, we reject R.T's argument that he lacks sufficient contacts to New Jersey so that New Jersey exceeded its "parens patriae jurisdiction" to protect its citizens from harm by subjecting him to civil commitment proceedings in this State.
R.T. further argues that New Jersey was required to give full faith and credit to the Pennsylvania judgment placing him on probation and mandating that he receive outpatient treatment. The Full Faith and Credit Clause provides that, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." U.S. Const. art IV, § 1.
Importantly, the Clause does not require "a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." Pac. Emp'rs Ins. Co. v. Indus. Accident Comm'n, 306 U.S. 493, 501, 59 S. Ct. 629, 632, 83 L. Ed. 940, 944 (1939). Nor does it require "a State to apply another State's law in violation of its own legitimate public policy." Nevada v. Hall, 440 U.S. 410, 422, 99 S. Ct. 1182, 1189, 59 L. Ed. 2d 416, 426 (1979). "[F]or a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair." Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13, 101 S. Ct. 633, 640, 66 L. Ed. 2d 521, 531 (1981).
Here, the State's decision to civilly commit R.T. is based on its own legitimate public policy. Our Supreme Court has repeatedly emphasized that the Legislature's goal for the SVPA was to create a civil, not penal, regulatory scheme. See In re Civil Commitment of W.X.C., 204 N.J. 179, 188 (2010), cert. denied, 562 U.S. 1297, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011); In re Civil Commitment of J.M.B., 197 N.J. 563, 599, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); State v. Bellamy, 178 N.J. 127, 137-38 (2003). Its purposes are regulatory, because "the statute is designed to protect the public from dangerous predators and to treat sex offenders who are, by definition, suffering from a mental abnormality." See W.X.C., supra, 204 N.J. at 188. Those are legitimate legislative goals, which protect the community and also provide care to its citizens who are in need of treatment and who are unable to secure it for themselves. See W.Z., supra, 173 N.J. at 125. Consequently, we perceive no full faith and credit violation. Upon completion of his treatment in New Jersey, R.T. shall be free to return to Pennsylvania to fulfill its probationary requirements.
After a thorough review of the record and consideration of the controlling legal principles, we conclude that R.T.'s remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). R.T. contends that he was denied his right to a commitment hearing within twenty days of the filing of the temporary commitment order in violation of N.J.S.A. 30:4-27.29(a) and his right to due process. However, the record reflects that all delays were caused by R.T.'s desire to await the outcome of his appeals challenging the court's jurisdiction and his PCR proceedings, as well as his apparently unsuccessful efforts to retain new counsel and an expert to support his position.
Judge Freedman also expressly found that R.T. "filed lawsuits against the [c]ourt, his [] doctors, his lawyer, and any number of other people in an attempt to avoid this hearing." Consequently, he cannot now be permitted to claim that his lawsuit against the Office of the Public Defender (and others) created a conflict of interest that should have resulted in the assignment of new counsel to represent him.
Moreover, after R.T. filed an ethics complaint against the public defender who represented him at the December 12, 2012 hearing, that public defender withdrew from the case. The memorializing order recites that R.T. "represented that he intends to retain private counsel." R.T. failed to do so, requiring that new counsel be appointed to represent him at the final hearing. We further note that a defendant is not entitled, carte blanche, to his choice of attorney if he elects to have the Office of the Public Defender represent him at the taxpayers' expense. State v. Coon, 314 N.J. Super. 426, 438 (App. Div.), certif. denied, 157 N.J. 543 (1998). "The right to assigned counsel is not the right to pick an attorney of one's own choosing, nor the right to select counsel who will completely satisfy a defendant's fancy as to how he is to be represented." Ibid.
Here, the record shows that R.T. was adequately represented at the final hearing by competent counsel who actively cross-examined the expert witnesses and raised objections throughout the hearing. Prior counsel also moved to dismiss the State's petition and sought interlocutory review when that relief was denied. Accordingly, we discern no basis to disturb the trial court's judgment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION